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January 13 2022

U.S. Supreme Court Stays OSHA’s Vaccine Mandate but Allows Vaccine Mandate for Facilities Receiving Medicare or Medicaid Funds to Proceed

By: Kathryn M. Zoller

Today, the Supreme Court of the United States granted a request to stay the implementation of the OSHA Emergency Temporary Standard mandating that employers with 100 or more employees require their employees to receive COVID-19 vaccinations or be tested for COVID-19 weekly (“the OSHA ETS”).  See National Federation of Independent Business v. Department of Labor, Occupational Safety and Health Administration, 595 U.S. ___, ___ (2022) (per curiam), slip op. at 9, found here: https://www.supremecourt.gov/opinions/21pdf/21a244_hgci.pdf.  This opinion is not a final decision on the legal challenges to the mandate, but it prevents the OSHA ETS from going into effect while the case proceeds.  Mika Meyers previously summarized the OSHA ETS’s requirements in a November 5, 2021 Client Alert, found here:  https://bit.ly/3FkjKH5.     

In a separate decision, the Supreme Court allowed a vaccine mandate applicable to facilities receiving Medicare or Medicate funds (“the Healthcare Mandate”) to take effect.  In Biden v. Missouri, 595 U.S. ___, ___ (2022) (per curiam), slip op. at 9-10, the Court lifted orders from lower courts that operated to stay the implementation of the Healthcare Mandate until there was a final decision on the legal challenge to it. That opinion can be found here: https://www.supremecourt.gov/opinions/21pdf/21a240_d18e.pdf. As with the OSHA ETS, this was not a final decision, but permits the Healthcare Mandate to go into effect while the case proceeds.

As stated in previous Client Alerts, Michigan employers are subject to Michigan Occupational Safety and Health Administration (MIOSHA) jurisdiction, not OSHA. MIOSHA has not implemented a vaccine mandate and has indicated it has no intent to do so unless the OSHA ETS is upheld. Accordingly, unless another vaccine mandate applies, such as the Healthcare Mandate, Michigan employers are not currently required to mandate that their employees receive COVID-19 vaccinations.

Mika Meyers continues to monitor the progress of cases relating to vaccine mandates.  Employers with questions regarding the OSHA ETS, the Healthcare Mandate, employer-imposed vaccine/testing mandates, or other COVID-19 matters should contact Nikole Canute, Scott Dwyer, or Nate Wolf.